In “Reassessing Prosecutorial Power Through the Lens of Mass Incarceration,” an article worth reading if you’re interested in how justice system actors function, author Jeffrey Bellin begins with a story from his days as a line prosecutor. Among the various diversion programs his office employed was the “Stet Docket,” where criminal cases were held in abeyance for six months or a year. If at the end of the term the defendant hadn’t reoffended, the office dismissed the case. As Bellin recounts, the Stet Docket was something overloaded defense attorneys and line prosecutors could both appreciate. To ensure that the Stet Docket wasn’t abused, a line prosecutor needed a supervisor’s approval before diverting a case there. “As supervisors said yes sparingly, one prosecutor became something of a legend simply because he stopped asking. Risking his job, he covertly placed all manner of cases on his own personal Stet Docket, creating a parallel criminal justice universe alongside the formal process available to other defendants.”
For Bellin, this story has a lot to say about the nature of prosecutorial discretion. That is, the power of prosecutors is less the power to hold criminals accountable than it is “the unreviewable ability to (discretely) open exits from an otherwise inflexible system.” Bellin’s is a more sanguine take on prosecutorial discretion than the standard academic view, which stigmatizes prosecutors as shadowy and near omnipotent officials hell-bent on getting convictions and seeing stiff sentences imposed. As Bellin writes, “Prosecutors are the Darth Vader of academic writing: mysterious, powerful and, for the most part, bad.”
Bellin is responding to the work of John Pfaff (professor, Fordham), who in February released a highly-anticipated book, Locked In: The True Causes of Mass Incarceration—and How to Achieve True Reform. Pfaff’s research on the causes of America’s incarceration boom (i.e., how did the prison population in the United States balloon from 200,000 inmates in 1973 to 1.5 million in the 2000s?), has been hailed as groundbreaking, and seems poised to influence the direction of criminal justice reform. His work has received a degree of public influence most law professors can only fantasize about: It has been featured in the New Yorker, the Wall Street Journal, and the New York Times; Barack Obama cited Pfaff’s research in his recent law review article; and it has found an audience with a prominent member of the federal judiciary.
Bellin’s article questions a key tenet of Pfaff’s work: that prosecutors, not judges or legislators, “have been and remain the engines driving mass incarceration.” Bellin points out a host of weaknesses in Pfaff’s research, casting doubt on the data Pfaff relies on to bolster his assessment. Bellin’s article also lays out a persuasive assessment of prosecutorial power that undermines the trope of the Zeus-like DA. One key power of prosecutors is their ability to file criminal charges against an individual or entity. Bellin observes that the charging power is limited and that charging decisions reflect the behavior of other actors within the justice system:
[P]rosecutorial charging decisions are strongly susceptible to the powerful influence of other criminal justice figures. This is because unlike prosecutorial dismissals, prosecutorial charging is regulated. . . . As everyone recognizes, felony charges require either an indictment by a grand jury or a probable cause finding by a judge. In addition, ethics rules prohibit the prosecution of a charge that is not supported by probable cause.
More importantly, there are powerful, indirect checks on charging. Prosecutors only care about charges to the extent they lead to convictions. As a result, prosecutors charge with an eye on future proceedings. This means that, in light of a clear increase in the harshness of other criminal justice actors, we would expect charges to become more severe over the past four decades without any change in prosecutorial aggressiveness. For example, if legislatures broadened sexual assault offenses, victims became more likely to report, police became more likely to arrest, juries became more likely to convict, and judges became more likely to sentence (or any one of those things), prison commitments for those crimes would increase, without a change in prosecutorial aggressiveness. Prosecutors would be acting as they always have, assessing cases based on the likely outcome – i.e., the actions of other, more powerful, criminal justice actors – and charging accordingly.
Bellin also suggests that “overcharging” has little effect on outcomes for defendants:
The prosecutor predicts what a jury and judge will do with the case in light of laws enacted by the legislature. If the prediction is flawed, defendants will (on balance) go to trial and win. Even if overcharged defendants lose at trial, or plead guilty, that alone would not lead to an incarceration increase. Judges reign at sentencing. Absent a mandatory minimum sentence . . . , the judge can ignore the prosecutor’s characterization of the criminal conduct and impose a sentence that reflects the conduct itself, rather than any inflated overcharge. All a prosecutor accomplishes by overcharging – i.e., charging an offense that a jury will reject and a judge will discount at sentencing – is an increased risk of pretrial dismissal and a defendant who insists on a trial. As a consequence, the mechanism by which increasing “prosecutorial toughness when it comes to charging people” unilaterally hikes prison populations remains elusive.
According to Bellin, the plea bargaining power—another discretionary function of prosecutors—operates under similar restraints:
While the prosecutor’s ability to offer leniency in a plea (essentially a close cousin of outright dismissal) is virtually unchecked, efforts to ratchet up severity run into a variety of obstacles. The primary check on a prosecutor’s ability to impose punishment through plea bargaining is that any plea deal requires the defendant’s agreement. The Constitution guarantees every defendant the right to reject even the most generous plea offer and proceed to trial.
Even if the defendant agrees to plead guilty, the prosecutor must overcome another obstacle before punishment is imposed, the judge. Judges approve all plea deals. If the judge believes the deal does not fairly reflect the defendant’s conduct, she can reject it – even if she belatedly makes the determination at sentencing after reviewing a presentence report. If the judge approves a deal, she typically retains final say on sentence. While some plea agreements dictate a particular sentence, others leave the sentence to the judge. In either scenario, the judge determines the ultimate sentence by implicitly approving the parties’ stipulated sentence, or explicitly selecting a sentence.
The prosecutor’s plea bargaining power is further limited by the fact that legislators, judges, and juries fill in the landscape in which plea deals are evaluated. By determining what will occur in the small percentage, but large number, of cases that go to trial, these actors guide the outcome in plea bargained cases. . . . Studies suggest that plea deals across a large number of cases reflect a predictable discount from generally agreed-upon, likely trial outcomes.
Bellin and Pfaff share the belief that our society locks up too many of its citizens, but Bellin believes Pfaff’s proposed reforms—imposing mandatory charging and plea guidelines for prosecutors, and increasing transparency in prosecutors’ offices—will only exacerbate what they both see as a problem. As Bellin explains:
There are already a series of rules that restrict prosecutors’ ability to “impose” incarceration. Grand juries screen felony charges, petit juries determine guilt, judges impose sentences, and defendants must agree to any plea deal. Those are as powerful a set of rules as anything reformers can conjure up. The one thing existing rules don’t constrain is prosecutorial leniency, the ability to quietly open exit doors. Mandatory charging and plea bargaining guidelines would change that.
. . . Given that most of what prosecutors do out of public sight is dismiss cases, [Pfaff’s] transparency proposals are again more likely to increase rather than decrease incarceration levels. If legislators and the public had a better sense of what prosecutors are doing (i.e., dropping cases brought to them by the police), they might react by restricting that dismissal power.
Bellin makes a strong case that while prosecutors can make a severe system lenient, they can’t “unilaterally make a relatively lenient system severe.” “The point, he writes, “is that prosecutors are primarily ‘worker bees’ who toil in the system, rather than wizards bending it to their will.”
I think Bellin has it right. (Certainly, most days I don’t feel like a wizard, but rather like the merest of muggles.) Of course the takeaway shouldn’t cheapen the power prosecutors wield. There’s a good reason the rules of professional conduct hold prosecutors to higher ethical standards than other attorneys, and a prosecutor who doesn’t grasp the gravity of his role is bound to do damage. But as Bellin’s anecdote suggests, the power of the prosecutor is at its apex in its ability to open escape hatches from what the law otherwise demands.